[Deschler's Precedents, Volume 3, Chapters 10 - 14]
[Chapter 11. Questions of Privilege]
[B. Privilege of the House]
[Â§ 5. Time for Consideration; Precedence of the Question]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1593-1598]
 
                               CHAPTER 11
 
                         Questions of Privilege
 
                       B. PRIVILEGE OF THE HOUSE
 
Sec. 5. Time for Consideration; Precedence of the Question

Precedence of Motions to Adjourn

Sec. 5.1 A question of privilege is not entertained pending a vote on a 
    motion to adjourn.

    On Apr. 15, 1970,(4) following a point of order 
objecting to a vote on a motion to adjourn based on the absence of a 
quorum, Mr. Louis C. Wyman, of New Hampshire, rose to a question of 
``privilege.'' The Speaker pro tempore (5) indicated that 
the pendency of the motion to adjourn precluded the entertainment of 
the question.(6)
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 4. 116 Cong. Rec. 11940, 11941, 91st Cong. 2d Sess.
 5. Charles M. Price (Ill.).
 6. By explicit provision Rule IX, House Rules and Manual Sec. 661 
        (1973), mandates that questions of privilege ``shall have 
        precedence of all other questions, except motions to adjourn.''
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Sec. 5.2 The House may adjourn pending a decision on a question of 
    privilege of the House.

    On June 5, 1940,(7) Mr. Hamilton Fish, Jr., of New York, 
offered a resolution (8) raising a question of the privilege 
of the House. A point of order that a quorum was not present was then 
made by Mr. William P. Cole, of Maryland. When the count of the House 
by the Speaker (9) disclosed the absence of a quorum, the 
House agreed to a motion offered by Mr. Sam Rayburn, of Texas, 
adjourning until the following day.
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 7. 86 Cong. Rec. 7633, 76th Cong. 3d Sess.
 8. H. Res. 510.
 9. William B. Bankhead (Ala.).
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Precedence of Question of Privilege

Sec. 5.3 Parliamentarian's Note: A question of privilege has priority 
    over all other questions except motions to adjourn,(10) 
    and supercedes the consideration of the original question
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10. Rule IX, House Rules and Manual Sec. 661 (1973), and 3 Hinds' 
        Precedents Sec. 2521.
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[[Page 1594]]

    and must be disposed of first.(11)

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11. House Rules and Manual, Jefferson's Manual Sec. 458, and annotation 
        to Rule IX, Sec. 664 (1973); and 3 Hinds' Precedents Sec. 2522.
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Precedence of Prior Question of Privilege

Sec. 5.4 At a time when a question of privilege is pending in the 
    House, a Member will not be recognized to present another question 
    of privilege.

    On May 28, 1936,(12) Mr. C. Jasper Bell, of Missouri, 
offered a privileged resolution (13) raising a question of 
the privileges of the House. Thereafter, Mr. Joseph P. Monaghan, of 
Montana, sought recognition to raise a point of personal privilege and 
of the privilege of the House. Declining to extend recognition, the 
Speaker (14) stated: (15)
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12. 80 Cong. Rec. 8222, 74th Cong. 2d Sess. For a similar example see 
        80 Cong. Rec. 5704-06, 74th Cong. 2d Sess., Apr. 20, 1936.
13. H. Res. 532.
14. Joseph W. Byrns (Tenn.).
15. 80 Cong. Rec. 8222, 74th Cong. 2d Sess., May 28, 1936.
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        The question now pending is a question of the privilege of the 
    House, and that takes precedence over the question of privilege of 
    the gentleman from Montana. There can be only one question of 
    privilege before the House at a time, and one is now pending.

Question of Privilege as Unfinished Business

Sec. 5.5 A question of the privilege of the House pending at the time 
    of adjournment becomes the unfinished business on the next day.

    On Aug. 27, 1940,(16) the House adjourned during debate 
on a resolution involving the question of the privilege of the House 
offered by Mr. Jacob Thorkelson, of Montana. At the commencement of the 
succeeding day's business the Speaker (17) stated:
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16. 86 Cong. Rec. 11046-49, 76th Cong. 3d Sess. For an additional 
        example see 112 Cong. Rec. 27641, 89th Cong. 2d Sess., Oct. 19, 
        1966.
17. William B. Bankhead (Ala.).
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        The unfinished business before the House is the question of the 
    privilege of the House raised by the gentleman from Montana. Does 
    the gentleman from Montana desire to be recognized?

Precedence as to the Journal

Sec. 5.6 The Speaker indicated that, unlike a question of personal 
    privilege, a question of the privilege of the House could interrupt 
    the reading of the Journal.

    On the legislative day of Oct. 8, 1968,(18) during the 
reading of the
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18. 114 Cong. Rec. 30214-16, 90th Cong. 2d Sess., Oct. 9, 1968 
        (calendar day).
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[[Page 1595]]

Journal the following proceedings occurred:

        Mr. [Robert] Taft [Jr., of Ohio]: Mr. Speaker----
        The Speaker: (19) For what purpose does the 
    gentleman from Ohio rise?
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19. John W. McCormack (Mass.).
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        Mr. Taft: Mr. Speaker, I have a privileged motion.
        Mr. [Sidney R.] Yates [of Illinois]: A point of order, Mr. 
    Speaker. That is not in order until the reading of the Journal has 
    been completed.
        The Speaker: Will the gentleman from Ohio state his privileged 
    motion?
        Mr. Taft: Mr. Speaker, my motion is on a point of personal 
    privilege.
        The Speaker: Will the gentleman from Ohio state whether it is a 
    point of personal privilege or a privileged motion?
        Mr. Taft: It is a privileged motion, and a motion of personal 
    privilege.
        Under rule IX questions of personal privilege are privileged 
    motions, ahead of the reading of the Journal.
        The Speaker: The Chair will advise the gentleman that a 
    question of personal privilege should be made later after the 
    Journal has been disposed of.
        If the gentleman has a matter of privilege of the House, that 
    is an entirely different situation.
        Mr. Taft: I believe, Mr. Speaker, this involves not only 
    personal privilege as an individual, but also as a Member of the 
    House and also the privileges of all Members of the House.
        The Speaker: The Chair does not recognize the gentleman at this 
    time on a matter of personal privilege.
        But the Chair will, after the pending matter, the reading of 
    the Journal has been disposed of, recognize the gentleman if the 
    gentleman seeks recognition.

Precedence Over Calendar Wednesday Business

Sec. 5.7 A matter involving the privilege of the House takes precedence 
    over the continuation of the call of committees under the Calendar 
    Wednesday rule.

    On Feb. 8, 1950,(20) during the call of committees 
pursuant to the Calendar Wednesday rule,(1) the following 
proceedings occurred:
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20. 96 Cong. Rec. 1695, 81st Cong. 2d Sess.
 1. Rule XXIV clause 7, House Rules and Manual Sec. 897 (1973).
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        Mr. [Vito] Marcantonio [of New York]: Mr. Speaker, a point of 
    order.

        The Speaker.(2) The gentleman will state it.
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 2. Sam Rayburn (Tex.).
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        Mr. Marcantonio: Mr. Speaker, this is Calendar Wednesday, and I 
    ask that the business of Calendar Wednesday proceed. I submit that 
    the regular order is the continuation of the call of committees by 
    the Clerk.
        The Speaker: The Chair at this time is going to lay before the 
    House a matter of highest privilege.

The Speaker then laid before the House as a matter involving the 
privileges of the House a communication from the Clerk of the House 
reporting the receipt of a

[[Page 1596]]

subpena duces tecum from a U.S. district court.

Precedence Over District of Columbia Business

Sec. 5.8 A resolution involving a question of the privilege of the 
    House takes precedence over District of Columbia business under 
    Rule XXIV clause 8.

    On Dec. 14, 1970,(3) it being the day set aside by House 
rule (4) for consideration of District of Columbia business, 
the House nevertheless entertained a resolution (5) 
concerning the printing and publishing of a report of the Committee on 
Internal Security presented by Mr. Richard H. Ichord, of Missouri, as a 
matter involving the question of the privilege of the House. Mr. Ichord 
stated in part as follows:
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 3. 116 Cong. Rec. 41355, 41358, 91st Cong. 2d Sess.
 4. Rule XXIV clause 8, House Rules and Manual Sec. 899 (1973).
 5. H. Res. 1306.
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        I rise to a question of privilege in a matter affecting the 
    rights of the House collectively, the integrity of its proceedings, 
    and the rights of the Members in their respective capacity. See 
    House rule XI. As you know, this question comes before us as a 
    consequence of proceedings instituted on October 13, 1970, in the 
    U.S. District Court for the District of Columbia to enjoin the 
    filing, printing, publishing, and dissemination of a report of the 
    House Committee on Internal Security (No. 91-1607), titled 
    ``Limited Survey of Honoraria Given Guest Speakers for Engagements 
    at Colleges and Universities,'' which I reported to the House on 
    October 14. On October 28, 1970, a single judge of that court . . . 
    entered a final order permanently enjoining the Public Printer and 
    the Superintendent of Documents from printing and distributing any 
    copy of the report, or any portion, restatement, or facsimile 
    thereof, and declared that any publication of the report at public 
    expense would be illegal. . . .
        Never in the constitutional history of this Nation . . . has 
    any court of the United States . . . sustained any such final 
    restraint upon the printing and dissemination of a report of a 
    committee of the Congress.

Precedence Over Motion for the Previous Question

Sec. 5.9 A resolution properly asserting a question of the privilege of 
    the House could take precedence over a motion for the previous 
    question on a bill already reported from the Committee of the 
    Whole.

    On May 24, 1972,(6) the Committee of the Whole House on 
the state of the Union rose and reported to the House a bill 
(7) con

[[Page 1597]]

cerning certain appropriations for the Department of Transportation. 
Thereafter, prior to consideration of the motion for the previous 
question on the bill made by Mr. John J. McFall, of California, Ms. 
Bella S. Abzug, of New York, submitted a resolution (8) 
asserting as a question of privilege of the House that the House recess 
for the purpose of receiving a petition for the redress of certain 
grievances. After the resolution was read, the Speaker (9) 
sustained a point of order that the resolution did not state a question 
of the privileges of the House.(10)
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 6. 118 Cong. Rec. 18675, 92d Cong. 2d Sess.
 7. H.R. 15097.
 8. H. Res. 1003.
 9. Carl Albert (Okla.).
10. See Sec. 3.1, supra.
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Application of Three-day Rule Regarding Committee Reports

Sec. 5.10 A committee report submitted as a matter involving the 
    privileges of the House, as distinguished from a report merely 
    privileged under the rules, may be considered on the same day 
    reported notwithstanding the requirement by House rule that 
    committee reports be available to Members at least three calendar 
    days prior to their consideration.

    On July 13, 1971,(11) Mr. Harley O. Staggers, of West 
Virginia, rising to a question of the privilege of the House, sought to 
submit and call up for immediate consideration a report (12) 
of the Committee on Interstate and Foreign Commerce on the contemptuous 
conduct of a witness in refusing to respond to a subpoena duces tecum 
issued by the committee. A point of order was then raised by Mr. Sam M. 
Gibbons, of Florida, that consideration of the matter violated a House 
rule (13) requiring committee reports to be available to 
Members for at least three calendar days prior to their consideration. 
Following some debate, the Speaker (14) in overruling the 
point of order stated:
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11. 117 Cong. Rec. 24720-23, 92d Cong. 1st Sess.
12. H. Rept. No. 92-349.
13. House Rules and Manual Sec. 735 (1973).
14. Carl Albert (Okla.).
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        The Chair has studied clause 27(d)(4) of rule XI and the 
    legislative history in connection with its inclusion in the 
    Legislative Reorganization Act of 1970. That clause provides that 
    ``a matter shall not be considered in the House unless the report 
    has been available for at least 3 calendar days.''
        The Chair has also examined rule IX, which provides that:

            Questions of privilege shall be, first, those affecting the 
        rights of the

[[Page 1598]]

        House collectively, its safety, dignity, and the integrity of 
        its proceedings . . . and shall have precedence of all other 
        questions, except motions to adjourn.

        Under the precedents, a resolution raising a question of the 
    privileges of the House does not necessarily require a report from 
    a committee. Immediate consideration of a question of privilege of 
    the House is inherent in the whole concept of privilege. When a 
    resolution is presented, the House may then make a determination 
    regarding its disposition.
        When a question is raised that a witness before a House 
    committee has been contemptuous, it has always been recognized that 
    the House has the implied power under the Constitution to deal 
    directly with such conduct so far as is necessary to preserve and 
    exercise its legislative authority. However, punishment for 
    contemptuous conduct involving the refusal of a witness to testify 
    or produce documents is now generally governed by law--Title II, 
    United States Code, sections 192-194--which provides that whenever 
    a witness fails or refuses to appear in response to a committee 
    subpoena, or fails or refuses to testify or produce documents in 
    response thereto, such fact may be reported to the House. Those 
    reports are of high privilege.
        When a resolution raising a question of privilege of the House 
    is submitted by a Member and called up as privileged, that 
    resolution is also subject to immediate disposition as the House 
    shall determine.
        The implied power under the Constitution for the House to deal 
    directly with matters necessary to preserve and exercise its 
    legislative authority; the provision in rule IX that questions of 
    privilege of the House shall have precedence of all other 
    questions; and the fact that the report of the committee has been 
    filed by the gentleman from West Virginia as privileged--all refute 
    the argument that the 3-day layover requirement of clause 27(d)(4) 
    applies in this situation.
        The Chair holds that the report is of such high privilege under 
    the inherent constitutional powers of the House and under rule IX 
    that the provisions of clause 27(d)(4) of rule XI are not 
    applicable.
        Therefore, the Chair overrules the point of order.